[Eugene Volokh] Anti-American Speech and Spray-Painting "Allah, Muhammad" in Storage Locker Can Be Evidence of Motive …

[in prosecution for bomb hoax at church; but spray-painting "the stupid Jew" in the storage locker isn't relevant enough, and thus isn't admissible. (Both the painted items were in defendant's native Kurdish.)]

From U.S. v. Salah, decided Tuesday by Judge Dena Coggins (E.D. Cal.):

Defendant is charged in the superseding indictment with the following two counts: (1) violating 18 U.S.C. § 1038(a)(1)(A) - False Information and Hoax, by "knowingly affix[ing] a backpack to a toilet in the restroom of a church in Roseville, California with the intent to convey the false and misleading information that the backpack contained a bomb"; and (2) violating 18 U.S.C. 247(a)(2) – Obstruction of Persons in the Free Exercise of Religious Beliefs, by "knowingly affix[ing] a backpack to a toilet in the restroom of that church in order to convey a bomb threat and thereby obstruct the church's congregants in the enjoyment of their free exercise of religious beliefs."

Defendant is charged with the following conduct:

On November 12, 2023, the Defendant entered a Christian church in Roseville, California, during the 9:00 am Sunday service. The Defendant, wearing a black backpack, walked to the men's bathroom where he tied the backpack to a toilet and then left the church. When security staff spotted the backpack, they believed it to be a bomb and called 911. The backpack was eventually removed and opened and found to contain a pillow. Church security camera footage shows that the Defendant had entered and left the church and visited this same bathroom an additional time—without the backpack—earlier that same morning. Street camera footage further shows that the Defendant had driven to the church the morning before the incident, parked in the parking lot for roughly 17 minutes, never leaving his car, and then left.

The Government contends that Defendant committed the charged offenses as a part of a broader plan and attempt to bomb and terrorize Christian churches. [Details omitted. -EV]

Search warrant returns from the Defendant's YouTube account revealed that the Defendant had searched "infidels dying" and had watched YouTube videos about the Boston Marathon bombing, which was carried out with IEDs concealed in backpacks. The family who purchased the Defendant's Glendale, Arizona, home told investigators that the Defendant had made statements expressing animus against Christianity and the United States….

The long decision (over 7500 words) dealt with the defendant's requests to block the government from introducing various kinds of evidence; here's an excerpt focused on the evidence related to Salah's ideology:

[T]he Government seeks to admit evidence of Defendant's motive, including: "(1) anti-American rhetoric the Defendant made to the couple who bought his former home, (2) pro-Muslim statements the Defendant spray painted on the wall of his storage unit, and (3) YouTube searches and videos about killing infidels and the Boston Marathon bombing (collectively referred to as the 'motive evidence')." Specifically, the Government intends to elicit testimony from the couple who bought Defendant's mother's home just a few months before the charged incident and had several interactions with Defendant in which he acted aggressively and erratically.

For example, during one interaction, the homebuyer wore a hat with an American flag on it, and Defendant asked the homebuyer if he liked the flag, to which he replied he did, and Defendant responded, "Fuck this country. I hate America. This country went to Iraq and killed a lot of people." The Government also intends to introduce a photograph of a wall inside Defendant's storage unit that has a spray-painted message in Defendant's native Kurdish language, reading: "Allah, Muhammad" and "The stupid Jew." Lastly, the government plans to introduce evidence of Defendant's YouTube search history from 2019 showing he repeatedly searched for "infidels dying" and "ISIS killing people," watched dozens of videos of terrorist attacks, watched a YouTube video titled "Does Qur'an say kill infidels wherever you encounter them?", and watched multiple YouTube videos about the Boston Marathon bombing (an attack which was carried out with IEDs placed in backpacks).

The Government argues the motive evidence—evidence of Defendant's religious extremism and anti-American animus—is admissible as direct evidence to prove Defendant's motive and intent to commit the charged crimes: making a hoax bomb threat and obstruction of persons in the free exercise of religious beliefs. In his opposition, Defendant contends the motive evidence has low probative value because: (i) many Americans are upset by the United States' invasion of Iraq, so Defendant's statements to the homebuyers do not indicate an anti-American animus; (ii) "Allah, Muhammad" is a common phrase used by Muslims; (iii) "this case has nothing to do with the Jews, synagogues, or anything regarding the Jewish faith"; and (iv) viewing YouTube videos of the Boston marathon bombing and terrorist attacks is understandable because "[b]eing aware of the things that provoke these attacks is a survival tool for Muslims in America." The court finds Defendant's contentions to be largely unavailing.

First, as to Defendant's statements to the homebuyers, evidence that Defendant aggressively shouted his hatred for America after seeing the American flag hat worn by the homebuyer is probative of Defendant's motive and intent in committing the charged conduct, even if his hatred is premised on the United States' invasion of Iraq. Moreover, as the Government emphasizes in its reply brief, "[t]hat some may find the Defendant's views toward America offensive is not a basis to exclude the evidence." (citing United States v. Allen (9th Cir. 2003) (concluding that "although prejudicial, the skinhead and other white supremacy evidence was not unfairly so and properly was admitted to prove racial animus"); United States v. Springer (11th Cir. 2018) ("The potential prejudicial value of references to Springer's pro-ISIS sympathies is not lost upon us. But that evidence retains a sufficiently countervailing probative value given its importance in demonstrating Springer's statements were 'true threats.'"). In addition, the court does not find the probative value of the evidence of anti-American animus to be substantially outweighed by a danger of unfair prejudice, as Defendant's statements to the homebuyers is not more inflammatory than the charged conduct….

Second, as to the spray-painted phrase "Allah, Muhammad," Defendant contends this phrase as "absolutely no evidentiary value." But the evidence at issue is not that Defendant used a phrase that Muslims commonly say to reference a figure like "God" or "Jesus"; rather, this phrase was spray-painted on the wall of the storage unit Defendant rented just months before the charged incident and in which Defendant possessed several items that the jury could infer are IED components. Taken in context, the probative value of this evidence to show Defendant's motive and intent is not substantially outweighed by any unfair prejudice.

Third, in contrast to the common "Allah, Muhammad" phrase, which has probative value in context and does not carry a risk of unfair prejudice, the spray-painted phrase "the stupid Jew" is not relevant to the charged conduct and carries a risk of unfair prejudice in that the jury may improperly base their decision on their dislike of Defendant's anti-Jewish views. Notably, in its reply brief, the Government does not offer any argument to rebut Defendant's assertion that this evidence is irrelevant and prejudicial. Accordingly, while the court will grant the Government's motion to admit photographs that show the spray-painted phrase "Allah, Muhammad," the Government's motion to admit photographs showing the phrase "the stupid Jew" will be denied. Thus, any such photographs of that wall in the storage unit must blur out the phrase "the stupid Jew."

Fourth and finally, as for the YouTube searches and videos, the court is persuaded by the Government's assertion that "the fact that Defendant viewed videos in which a bombing was carried out by concealing the bomb in a backpack is clearly probative to charges that the Defendant placed a hoax backpack bomb in a church bathroom." In countering Defendant's argument that Muslims in America would watch such videos to stay informed and protect themselves from retaliatory attacks on Muslims, the Government asserts that "Defendant did not simply click on a few links to keep up with the news; he searched dozens of times for videos depicting 'infidels dying' and 'ISIS killing people,' he watched graphic videos of the murder of innocent civilians, and he watched videos discussing the morality of murdering non-Muslims, including a video titled 'Does Qur'an say kill infidels whenever you encounter them?'" In light of these details, the court finds Defendant's YouTube search and viewing history of these videos to be probative of Defendant's intent and motive in committing the charged conduct and admissible on that basis. See United States v. Abu-Jihaad (2d Cir. 2010) (affirming the district court's decision to admit into evidence excerpts of videos the defendant purchased because the pro-jihadist and violent content of the videos was relevant to understanding the defendant's motive and intent).

As for whether the evidence should nevertheless be excluded under Rule 403 [which provides that even relevant evidence should be excluded if its relevance is substantially outweighed by reasons to exclude it -EV], it is worth noting that Defendant does not advance any arguments regarding risk of prejudice from admission of these YouTube searches and videos. Instead, Defendant argues that admission of the YouTube videos would unduly consume time and resources because Defendant would seek to admit hundreds or thousands of videos to show "the full extent of [his] viewing habits, so that the jury can properly understand what his media consumption looked like." This argument is not well-taken. As the Government explained at the February 14, 2025 hearing, the Government will not be arguing or suggesting that Defendant searched for and viewed only pro-ISIS terrorist videos or even that Defendant primarily or predominately searched for such videos. Thus, the court is not persuaded that the video evidence should be excluded on the ground that its probative value is substantially outweighed by a danger of wasting time….

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